NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1900

___________

MICHAEL FRANCIS KISSELL,

Appellant

v.

DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTE

OF LAUREL HIGHSLANDS; PENNSYLVANIA STATE CORRECTIONS 

OFFICERS ASSOCIATION

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-15-cv-00058)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 2, 2016

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

(Opinion filed: December 5, 20016)

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OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Pro se appellant Michael Francis Kissell (“Kissell”) appeals from the judgment of 

the United States District Court for the Western District of Pennsylvania in his civil rights 

case. We will affirm the District Court’s dismissal.

I.

Because we write primarily for the parties, we will set forth only those facts 

essential to our decision. In March 2015, Kissell filed a complaint in the Western District 

clearly raising claims under Title VII, referencing 42 U.S.C. § 1983, and challenging 

portions of a 1997 judgment in his favor. The assigned Magistrate Judge recommended 

dismissing the initial complaint, but also giving Kissell leave to amend. After the District 

Court dismissed Kissell’s first complaint without further leave to amend, we affirmed the 

dismissal of his claims relating to the 1997 case, and vacated the dismissal as to his Title 

VII claims. See Kissell v. Dept. of Corrs., 634 Fed. App’x 876 (3d Cir. 2015).

On remand, Kissell filed an amended complaint raising Title VII claims and a § 

1983 claim against the Pennsylvania Department of Corrections (“D.O.C.”) and 

Pennsylvania State Corrections Officer Association (“P.S.C.O.A.”), and both defendants 

filed motions to dismiss under Fed. R. Civ. P. 12(b)(6). The Magistrate Judge entered 

two reports recommending granting the motions and dismissing the complaint with 

prejudice, opining that amendment would be futile as well as inequitable to the 

defendants. Kissell filed two sets of objections. Both asked the District Court to appoint 

counsel, and the second sought to add a § 1983 claim against specific individuals –

essentially, he sought further leave to amend. The District Court adopted the reports and 
3

recommendations without commenting on Kissell’s requests, and dismissed his complaint 

without further leave to amend. Kissell timely appealed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal 

under Fed. R. Civ. P. 12(b)(6) is de novo. See Wiest v. Lynch, 710 F.3d 121, 128 (3d 

Cir. 2013). Pro se complaints must be construed liberally, see Erickson v. Pardus, 551 

U.S. 89, 93-94 (2007), but when reviewing a motion to dismiss, “we accept the factual 

allegations contained in the Complaint as true, but disregard rote recitals of the elements 

of a cause of action, legal conclusions, and mere conclusory statements.” James v. City 

of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citing Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)). 

Where a complaint has not alleged sufficient facts to state a claim for relief that is 

“plausible on its face[,]” dismissal is appropriate. Ashcroft, 556 U.S. at 678. We review 

the denial of a motion for leave to amend for abuse of discretion. See Race Tires Am., 

Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 73 (3d Cir. 2010). 

On remand, Kissell filed an amended complaint attempting to reassert his Title VII 

claims and raising a § 1983 claim against the D.O.C. and P.S.C.O.A. He has now filed 

two complaints, along with objections that could be construed as attempts to amend those 

complaints. The Magistrate Judge’s first report and recommendation determined that 

Kissell’s Title VII claims, to the extent that they were against P.S.C.O.A, had only 

alleged passivity on the part of the union and not discrimination. See Angelino v. New 
4

York Times Co., 200 F.3d 73, 95-96 (3d Cir. 1999); see also E.E.O.C. v. Pipefitters Ass'n 

Local Union 597, 334 F.3d 656, 660 (7th Cir. 2003). The Magistrate Judge’s second 

report and recommendation concluded that Kissell had not stated a viable claim. 

We agree with the Magistrate Judge’s analysis. To state a claim for retaliation, 

Kissell had to allege that: “1) he engaged in conduct protected by Title VII; 2) his 

employer took an adverse action against him either after or contemporaneous with the 

protected activity; and 3) a causal link exists between his protected conduct and the 

employer's adverse action.” See Slagle v. Cty. of Clarion, 435 F.3d 262, 265 (3d Cir. 

2006). Kissell did not sufficiently allege the second and third elements of retaliation. Id. 

Kissell also failed to plead facts sufficient to allege discrimination on the basis of his sex, 

race, or disability; failed to point to parties other than P.S.C.O.A. or D.O.C. that these 

claims could be brought against; and otherwise failed to provide any clarity such that the 

District Court could fairly assess his claims. See James, 700 F.3d at 679. Given the 

above analysis, and that Kissell has been given several opportunities to amend his 

complaint, the District Court properly dismissed Kissell’s complaint without further leave 

to amend.1

Accordingly, we will affirm the District Court’s judgment.

 

1 Kissell’s § 1983 claim fell outside the scope of our remand. To the extent it was 

properly before the District Court, we agree with the District Court’s determination that 

the claim is meritless.